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Gorle Satyanarayana Vs. Gorle Peddi Naidu and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1941Mad362; (1940)2MLJ940
AppellantGorle Satyanarayana
RespondentGorle Peddi Naidu and anr.
Cases ReferredSarat Chandra Bose v. Bisweswar Mitra I.L.R.
Excerpt:
- - there is a good deal of case-law on the applicability of section 141, civil procedure code. 405 and other decisions of a like nature have added to this obiter dictum of the privy council the word 'only' and have laid it down that section 141 extends the procedure of the code as far as it can be made applicable only to original proceedings in the nature of suits, such as proceedings in probate, guardianship and so forth. 405, i am of opinion that section 141, civil procedure code, extends to such an application the procedure provided in this code, including that laid down in order 7, rule 10. it follows that the court below wrongfully failed to exercise its jurisdiction to return this application for presentation in the proper court......application for presentation is the proper court? the question is whether order 7, rule 10, civil procedure code, read with section 141 applies to an application of this nature. there is a good deal of case-law on the applicability of section 141, civil procedure code. the cases mostly depend on the decision of the privy council in thakur parshad v. fakir-ul-lah (1894) 5 m.l.j. 3 : l.r. 22 indap 44 : i.l.r. 17 all. 106 where their lordships decided that section 647 of the old code (corresponding to section 141) does not apply to proceedings in execution. the reasoning of that decision is that an elaborate procedure is set forth in the code itself for proceedings in execution and it would be surprising if the framers of the code had intended to apply another procedure mostly unsuitable.....
Judgment:

Wadsworth, J.

1. This revision petition is filed against an order dismissing an application under Section 19 of Act IV of 1938 on the ground that it was presented in the wrong Court. The application was in fact presented to the appellate Court, whereas in accordance with the decision in Rentala Gangaraju v. Bikkina Bulli Ramayya : AIR1939Mad483 , it should have been presented in the Court of First Instance. The decision upon which the lower Court proceeded took a view of the law which was by no means universally accepted before that decision appeared and it cannot be said that the applicant in applying to the Court which actually passed the decree which he desired to scale down was going contrary to the obvious meaning of the section under which his application was framed. It was only by reading Section 19 along with Section 20 that this Court arrived at the conclusion that the proper Court to receive an application under Section 19 was the Court of First Instance. We must therefore take it that the application to the appellate Court was one which, according to the applicant's view of the law, was bona fide presented in the proper Court though by reason of the subsequent decision it became apparent that his view of the law was wrong.

2. That being so, should the lower Court have dismissed his application or should it have returned the application for presentation is the proper Court? The question is whether Order 7, Rule 10, Civil Procedure Code, read with Section 141 applies to an application of this nature. There is a good deal of case-law on the applicability of Section 141, Civil Procedure Code. The cases mostly depend on the decision of the Privy Council in Thakur Parshad v. Fakir-ul-lah (1894) 5 M.L.J. 3 : L.R. 22 IndAp 44 : I.L.R. 17 All. 106 where their Lordships decided that Section 647 of the old Code (corresponding to Section 141) does not apply to proceedings in execution. The reasoning of that decision is that an elaborate procedure is set forth in the Code itself for proceedings in execution and it would be surprising if the framers of the Code had intended to apply another procedure mostly unsuitable by saying in general terms that the procedure for suits should be followed as far as applicable. Then follows the following sentence:

Their Lordships think that the proceedings spoken of in Section 617 include original matters in the nature of suits such as proceedings in probates, guardianships and so forth and do not include executions.

4. The decision in Sarat Chandra Bose v. Bisweswar Mitra (1926) Cal. 405 and other decisions of a like nature have added to this obiter dictum of the Privy Council the word 'only' and have laid it down that Section 141 extends the procedure of the Code as far as it can be made applicable only to original proceedings in the nature of suits, such as proceedings in probate, guardianship and so forth. This view has not been universally followed, for this Court has held in Venkatanarasimha Rao v. Suryanarayana (1925) 50 M.L.J. 75, that Order 9, Rule 9 read with. Section 141 can be applied to an application for the restoration of a petition dismissed for default which petition itself was preferred under Order 9, Rule 9. In Venkatarama v. Marudachala : AIR1931Mad795 , this Court has held that by virtue of Section 141, Order 9, Rule 5 can be applied to an application for a personal decree in a mortgage suit.

5. It seems to me, however, that it is unnecessary for me to decide whether or not Section 141 should be restricted to original proceedings more or less in the nature of suits; for I am of opinion that an application under Section 19 of Act IV of 1938 can be brought under this category. An application under Section 19 is not an application to amend a decree so as to bring it in accordance with the judgment; nor is it an application which can be said to be ancillary to the suit in which the decree was passed. It is in substance an application to enforce a new right created by a statute which came into force after the decree was passed. It is in no way ancillary to the decree but destructive of the decree; and though it may result in the amendment of the decree and the recording of satisfaction it is not, in my opinion, an application in the suit in which the decree was passed, but an entirely separate proceeding to enforce a new right quite distinct from the right declared in the original suit. In this view therefore, even adopting the strict view of Section 141 taken by the Calcutta High Court in Sarat Chandra Bose v. Bisweswar Mitra I.L.R. (1926)Cal. 405, I am of opinion that Section 141, Civil Procedure Code, extends to such an application the procedure provided in this Code, including that laid down in Order 7, Rule 10. It follows that the Court below wrongfully failed to exercise its jurisdiction to return this application for presentation in the proper Court.

6. The revision petition is therefore allowed with costs and the application will be returned to the applicant by the lower Court for presentation in the Court having jurisdiction.


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